If You Were A Tree... What Kind Of IP Protection Could You Get?

from the copyfraud-and-confusion dept

"A friend of mine just posted a photo of the Lone Cypress in Pebble Beach and included a note saying, "Evidently, I can't sell this image. pebble beach owns the rights." From what I know about photography copyrights in the U.S., that's completely incorrect.

He also pointed us to this other image (not the one his friend took) of the same tree, with an explanation claiming that there are signs nearby saying that you can't take photographs of the tree and then sell them:

Along the fence, there are signs claiming that the tree is actually copyrighted by the Pebble Beach Association and that no photos, paintings, drawings or other depictions of the tree can be offered for sale without the express written permission of the Pebble Beach Association. If you ask me this is ludicrous and asinine. The tree is part of nature, changes with each season and I doubt there is a court in the land that would agree that any natural work of nature can be copyrighted in this manner so I doubt it is enforceable and the only way they can enforce the copyright is to threaten very expensive lawsuits which few artists would be able to fight.

This is partly true and partly misleading/wrong. However, it appears that this story pops up every so often, so let's dig in a bit and explain what's happening. But first, a photograph of the tree:

It seems that this issue comes up every few years, and some of the concern about "copyrighting" a tree has more to do with general confusion about intellectual property law (and contract law). During slow news periods, it sometimes even hits the mainstream news, as evidenced by this NY Times article from 1990.

However, Pebble Beach is not, it appears, claiming copyright on the tree. It is, however, claiming a trademark -- which was actually on a drawing of the tree as the symbol of Pebble Beach -- and which the resort registered in 1919. So the issue is (mostly) a trademark one -- but that shouldn't bar people from taking photos (or even selling the photos). While selling photos does meet the "use in commerce" bar of trademark, Pebble Beach would have to make the (somewhat extraordinary) claim that anyone selling such a photo was creating consumer confusion. That's an uphill battle, to say the least. At best, they might have a claim in a case where the image was used specifically as a brand logo or to advertise something else. But just selling a photograph of the tree seems unlikely to cause any confusion whatsoever.

There is a separate issue, though, which is contract law. Pebble Beach is private, and you actually have to pay to drive the famed 17-mile drive where the tree is located. So they're more than welcome to put forth a contractual agreement saying that you agree not to sell photographs, or something along those lines -- though, actually enforcing that contract might be a bit more difficult, and would seem kind of pointless in the long run, considering just how many photos of this tree are available.

As for the question of "copyrighting" the tree, well, I'll just quote an article from the Legal Recorder way back in 1990 that put forth a much more entertaining look at this story and whether or not trademarks, copyright or any IP could bar photographs. Here's the bit on copyright, though I encourage reading the whole thing:

Well then, can they copyright the tree?

Not likely. Copyright protection requires original and independent creative expression. Had the company designed and created the tree, coastline, ocean and lunar tidal pull, it might claim copyright protection. It might also be content simply to turn infringers into pillars of salt. In reality, however, the Pebble Beach Co. may face a steep climb in proving that the tree or its setting represents the company's original creative expression.

Moreover, even if the company has registered copyrights for an exhaustive array of Lone Cypress photos, these would not bar further photography. Subsequent photographs of the setting would not be likely to infringe earlier ones, as virtually all similar elements would owe to the setting itself.

Re: Re:

Yes, what are "location rights"?

I know that sometimes photographers and film/TV producers sometimes pay "location rights" but I don't know what laws actually back up any such "rights" other than trademark law, and only a few buildings, such as the Trans America Pyramid in San Francisco are trademarked (and, which is subsequently digitally removed from the skyline in some productions to, ridiculously, avoid legal liability to get Errors and Omissions insurance for the production.)

I'd love a link to an artilce by a movie clearances person

This is an esoteric subject. I'd love a link to an artilce by a movie clearances person. Many of the rights tv and movie producers "have to" get aren't because of actual specific laws but rather to reduce the risk of lawsuits, no matter how tenuous, for the purposes of obtaining Errors and Omissions insurance required by broadcast networks.

Re: Private Property

> As private property, they may actually have
> location rights as well.

So that means any photos taken from the water are fair game.

Actually, the beach/coastline can't be private property, either. Every inch of the coast is public property by state law. There's no such thing a private beach in California. Many wealthy Malibu beach house owners have long tried to keep their beaches private, even going so far as to erect fences to block access, only to be sued and told they can't keep the riffraff from traipsing across the scenic view they paid millions for.

The 'beach' is defined under law to be so many feet inland from the high tide line, so whatever that is, it can't be owned by Pebble Beach and any photos taken from there would be free of contractual obligation.

The title is:
"If You Were A Tree... What Kind Of IP Protection Could You Get?"
but you are not dead, past and gone in oblivion, because if you were you would not be reading this post so the title is incorrect.

The correct title should be:
"If You are A Tree... What Kind Of IP Protection Could You Get?"

There that places the action in to the present, with you alive, not in the past, with you dead.

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It is interesting. In Brazil you can't own the coastline (mainly beaches up to where the sand extends) itself. I'm not sure how that cliff would classify here but I guess it'd be "public domain" here since the place itself would be public (you can own a property after the beach ends but you must maintain an access for the public, unless it's territory that belongs to the Brazilian Navy). There are such limitations for land too depending on the situation.

Other than that, pretty much ANY scenery, natural element or the likes should be good to photograph and sell. Reminds me of some photographers suing because another photo looked like his/her. There's no such a thing, it's nearly impossible to have 2 exactly equal pictures since there will always be slight variations to the angle and environment (photographer hight, dynamic clouds and elements etc). At the time TD reached the spot on conclusion that you cannot copyright the idea but rather the execution of that idea. So If I use exactly the photo you took it's an offense but if I go to the place myself or set up a similar scene myself then it's good to go.

So the issue is (mostly) a trademark one -- but that shouldn't bar people from taking photos (or even selling the photos). While selling photos does meet the "use in commerce" bar of trademark, Pebble Beach would have to make the (somewhat extraordinary) claim that anyone selling such a photo was creating consumer confusion. That's an uphill battle, to say the least. At best, they might have a claim in a case where the image was used specifically as a brand logo or to advertise something else. But just selling a photograph of the tree seems unlikely to cause any confusion whatsoever.

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They have a mark on the tree silhouette, I believe. Someone could take a picture of the tree and use it in a way that dilutes the mark. Or they could use it in a way that causes confusion as to source.

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Or they could use it in a way that neither dilutes the mark nor causes confusion. What's your point again? Oh right, the pedantic observation on dilution that ignores the greater argument, that pebble beach is clearly claiming they have far more control over images of the tree than they actually do.

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Aren't you just an angry little asshole? Mike said the issue was trademark, but without confusion, there really wasn't an issue. I was merely pointing out that the issue could be trademark yet without confusion. And then you got all angry and pissy and acted like a cunt. Congrats! You win today's Angry Cunt award.

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Look. I made a viable point, and then I cited to relevant caselaw that has this very plaintiff winning on a dilution claim. It wasn't pedantic. It was adding something constructive to the conversation. Why are you being such a fucking douche about it? Not happy with your life?

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Look. You made a pedantic argument about a very minor issue, confusion and completely ignored what the article was actually about as a whole. When called on that you proceeded to do nothing but suggest that because I called you on it there must be something wrong with me and have now gone triple down on the name calling. I'm not being a 'fucking douche' about it, or an 'angry little asshole' or 'angry and pissy' or 'a cunt' just by pointing that out. You need to grow up. I'm very happy with my life thanks for asking.

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These are the comments. I made a comment. I quote caselaw that was relevant to my comment. I didn't know I had some obligation to you to comment on "what the article was actually about as a whole." I thought I could comment on the part that interested me.

There is something wrong with you for being such a control freak that you felt the need (and continue to feel the need) to convince me that I should have commented in the way you think I should have commented.

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My comment was relevant and respectful, and I believe I added something to the conversation. You've been concerned only with being hypercritical of me, and you are complaining that I didn't address "what the article was actually about as a whole." I understand that you think I was being pedantic and that I should have addressed the entire article. I disagree. I think you're being a bully and an asshole. I'm sure you disagree. I can (and do) take criticism all day long on TD. Sometimes the criticism is good, and sometimes it's someone being an asshole. With you, it's the latter. You think I'm a pedant, and I think you're a jerk. Seems like we're well past the point of diminishing returns with this.

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If your comment wasn't relevant to the discussion (it wasn't) then you're being pedantic (you were). Sidetracking the conversation, something you do at every turn, is called 'trolling.' This is why people call you a troll on a regular basis.

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The article was discussing the possible trademark issues. I identified a trademark issue that hadn't been mentioned. Do you not know what "relevant" means? I added what I thought was something of value to the conversation. There are many others who post idiotic nonsense that adds nothing. Do you bother them like a little prick?

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"Aren't you just an angry little asshole? Mike said the issue was trademark, but without confusion, there really wasn't an issue. I was merely pointing out that the issue could be trademark yet without confusion. And then you got all angry and pissy and acted like a cunt. Congrats! You win today's Angry Cunt award."

"My comment was relevant and respectful, and I believe I added something to the conversation."

Yes, because the definition of "adding something to the conversation" is epitomized by calling people an "angry little asshole" and "angry cunt."

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Oh look, it's everyone's favourite little troll, Willfully-Blind-Joe, the guy who sees people prevented from making due to the punishment upon accusation mentality of modern copyright law, and yet says there's no First Amendment violation.

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"LOL! Have you ever added even one thing of value to any discussion on Techdirt ever? I haven't seen it. You're in the running for Most Worthless Poster. Congrats!"

Really? I've only had several posts over the years picked as "most insightful" but ok, I guess I have nothing to contribute. Well, except for all those other times when I have shredded your "rah rah the law is the law copyright uber alles ZEIG HEIL!" rants to pieces.

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But the silhouette of the tree changes depending on angle, wind direction, time of year, and what year it is. Plus, these people aren't taking a picture of the silhouette, they're taking a picture of the tree.

But Mike!

Re: But Mike!

Who cares? The acorns are the originators here. The trees are just mindless incorporations taking credit for the acorn's work. These poor acorns pour their entire lives into their art and the trees reap all the benefits while the artist is left nothing but a cracked hull and a deep dark hole in the ground!

Re: Re: Re: But Mike!

Who speaks for horticulture?

Think of the tree. I wonder what it's getting out of this deal? I mean, it's the "natural" talent here, without it, the scene would just be another rock formation. Pebble is acting much like the RIAA; It locks up access to the tree so know one can enjoy it without paying the gatekeeper. The natural artist here, the tree in this case, won't get a dime. The natural creativity that this tree creates, Pebble claims as it's own. I guess as far as Pebble is concerned, it will never be recouped so no one else should even try to share the tree's creative beauty with the rest of the tree-loving world.

Re: Re: Who speaks for horticulture?

Yeah, but they have the right to offer the access in the first place? Like yesterday's fresco, it raises interesting question about when copyrighted works are attached to real property.

If the land was bare when they bought it, fine and good. But if a tree was already there, does the attachment of the trees work lay any claim o. The property either for ownership or for limiting subsequent rights of ownership?

If Billy Madison came up to the tree, could the tree by rights demand, "Stop looking at me Swan!!"

contract law - 17-mile drive??

Ehm... is that perhaps an OCEAN I can see in the photo?
Or do they have a 17-mile coastal range that would prevent me from taking my boat some 100 meters from the tree and making as many photos as I want without signing ANYTHING?

Of course, I couldn't make photos from the same angles as I could from the Pebble compound, but that's not the point ;-)

Perhaps there are some circumstances where trademark law may come into play, and perhaps the very limited relief associated with contract law might likewise come into play, copyright is one body of law that lends no hand to the Pebble Beach Association (which is essentially an HOA).

I do see the hobgoblin of copyright appear every now and then in discussions concerning photos, paintings, etc., but the law could not be more clear that snapping away, painting away, etc. is in no way restricted under copyright law.

Being in a car allowed into Pebble Beach != contract.

Access to Pebble Beach is by the car. No contract is signed by the driver, who pays. (Similar to browser wrap.) And no agreement is formed with the passengers. So contract law is a tenuous claim at best, and even then, only with the original photographer, not with anyone else who displays or posts the photo to the internet.

I am curious though, since the oldest live registrations I could find are pretty new (2000s), if they're actually updating the silhouette to match the current look of the tree, or if they're trimming the tree to keep it in line with the 1919 drawing, because it does look pretty similar.

Of course, none of that takes away from the absurdity of any of this, I'm just trying to provide a bit more context.